Thurston and Thurston
[2011] FamCAFC 250
•9 May 2011
FAMILY COURT OF AUSTRALIA
| THURSTON & THURSTON | [2011] FamCAFC 250 |
| FAMILY LAW – APPEAL – Application for leave and extension of time to appeal –Where the appellant husband was unable to appear due to illness – Where the appellant’s son was permitted to appear for the appellant husband – Where the application for an extension of time arose from the failure of the appellant to pay the filing fee or seek a reduction of the fee after having been informed of these requirements by the Appeals Registrar – Where one of the appealed orders was procedural in nature and leave was therefore necessary – Where there was no demonstrated error of principle or risk of substantial injustice to one of the parties – Leave in respect of the procedural order refused – Where the appeal was without merit and there was no explanation for the delay – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aarons v Knowles (1995) FLC 92-627 Clivery & Conway [2007] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 Rutherford and Rutherford (1991) FLC 92-255 |
| APPELLANT: | Mr Thurston |
| RESPONDENT: | Mrs Thurston |
| FILE NUMBER: | BRC | 2249 | of | 2010 |
| APPEAL NUMBER: | NA | 25 | of | 2011 |
| DATE DELIVERED: | 9 May 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 9 May 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 February 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Sara |
| SOLICITOR FOR THE RESPONDENT: | Neilson Stanton & Parkinson |
Orders
The husband’s application filed 1 April 2011 be dismissed.
The husband pay the wife’s costs of and incidental to the application to be assessed.
That such costs be paid by the husband from his share after the final property settlement distribution.
IT IS NOTED that publication of this judgment under the pseudonym Thurston & Thurston is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 25 of 2011
File Number: BRC 2249 of 2010
| Mr Thurston |
Appellant
And
| Mrs Thurston |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
An application in an appeal was filed by the husband on 1 April 2011 seeking an extension of time to file an appeal against two orders of Federal Magistrate Spelleken made 11 February 2011. The first order is that the application in a case of Mr Thurston (“the husband”) filed 15 November 2010 is dismissed. The second order is procedural in nature. The application for leave is resisted by the wife.
The husband also seeks a declaration that Mr Z Thurston, his son, is not yet a party to the proceedings. Such an order is unnecessary.
The grounds of appeal contained in the proposed notice of appeal are as follows:
1.Her Honour erred and her discretion miscarried in hearing a matter in the absence of a party or parties when there was an application before her that the matter needed to be adjourned for reason of documented and professionally supported evidence that the first appellant could not attend for medical reasons.
2.Her Honour denied the appellants natural justice or procedural fairness.
3.In the alternative, her Honour failed to take into account applications and evidence as previously filed by the appellants.
It should be mentioned at the outset that the husband failed to appear before the Federal Magistrate to seek an adjournment and that the material referred to in the notice of appeal was not filed in the Federal Magistrates Court and thus not before the Federal Magistrate.
History
An initiating application was filed by the wife on 4 May 2010 seeking final property orders. The wife sought an equal division of the property pool.
In an amending initiating application filed 11 April 2011 the wife now seeks inter alia that the property application be heard on an undefended basis.
There is also a contravention application which relates to the husband’s non-compliance with the procedural orders made by the Federal Magistrate from which the husband now seeks to appeal.
I have been informed that wife’s application is listed before the Federal Magistrate tomorrow for hearing.
The husband attempted to file a notice of appeal on 11 March 2011. That notice of appeal named both the husband and his son, Mr Z Thurston as appellants.
On 14 March 2011 it was explained to the husband by the Appeals Registrar that no provision had been made by him in filing his appeal for the payment of the filing fee. The husband was informed that the total fee payable was $956, unless both parties obtained a reduction of the fee. The husband said he would address this issue immediately.
On 21 March 2011 the issue of the fee had not been addressed and the documents were returned to the husband, accompanied with a letter from Registrar Spink. This letter said:
…I refer to my telephone conversation with you on 14 March 2011. As I indicated to you on that day I am unable to file the appeal without arrangements being made for the payment of the filing fee, which is $956.00. I further said to you that it may be the case that the appellants are each entitled to a reduction of the fee to $60.00 and that can be applied for by filing an application for reduction of the fee. However the fee cannot be reduced unless both applicants are entitled to a reduction. If only one appellant is entitled to a reduction in the fee, the whole fee is payable.
You told me that you would deal with these issues last week. I am now not able to hold these documents any further and they are returned herewith. If you are now out of time to file your appeal, you will have to apply to appeal out of time and you do this by filing an application in an appeal supported by an affidavit and providing the draft Notice of Appeal.
It can thus be seen that the application to file the appeal out of time arises from the failure of the husband to pay the filing fee or seek a reduction of the fee.
The husband who is the applicant has not appeared. Before me today an oral application was made by the husband’s son to appear on the husband’s behalf. It was explained that the husband was unable to appear due to illness, which was supported by a letter from both a general practitioner and psychologist. Mr Sara, counsel for the wife did not oppose the son’s application. Mr Z Thurston was allowed to appear for the husband.
The two medical reports are attached to the affidavit filed by the father. The report of the General Practitioner is dated 23 March 2011:
I have met Mr [Thurston] for the first time this morning. I have perused his recent pathology results and medical history from his previous GP and psychologist.
It is clear to me he has significant health issues that remain undiagnosed and largely under-treated, the most significant being iron deficiency anaemia.
He also presents with depression and anxiety to the fore. These also seem under-treated.
I have commenced a round of fresh tests today and will be reviewing him later this week.
I share the view of his psychologist that in addition to his physical ill-health, his emotional state is extremely fragile. I believe he is genuine when he expresses his despair and lack of emotional resources with which to deal with court proceedings. In summary, I fully support his request to delay proceedings in order to make some real gains with his physical and emotional ill-health.
The report of the psychologist is dated 17 March 2011:
I have seen [Mr Thurston] on five occasions this year. On these occasions he has presented as a person who is particularly depressed and very emotional.
I gave [Mr Thurston] an inventory named Depression, Anxiety and Stress Scale (DASS).
The DASS is a 42 item self-report questionnaire designed to measure the severity of a range of symptoms common to both Depression and Anxiety. The essential function of the DASS allows not only a measure of a severity of a patient’s symptoms of Depression, Anxiety and Stress but a means by which a patient’s response to treatment can be measured.
[Mr Thurston’s] score were Depression 41/42 extremely severe, Anxiety 35/42 extremely severe, and Stress 42/42 extremely severe. My fear is that [Mr Thurston] may consider suicide as a solution of his problems.
Until [Mr Thurston] is of a better frame of mind, improved by medication, I suggest that his appearing in court should be put on hold until there is significant improvement in his mental state. At the present time his cognitive state is poor. [Mr Thurston] could not be held responsible for his accurate response to any question given to him.
In the affidavit of the husband he submits that the Federal Magistrate erred by denying him procedural fairness in making the order dismissing his application for final orders and in making the procedural orders. It is said that the husband was unable to appear due to illness and that information was provided to the Registry explaining the husband’s circumstances. It was asked that this information be forwarded onto the Federal Magistrate. As mentioned it seems some documents were faxed to the court by a third party. The information was not filed in the appropriate way and it is apparent that the Federal Magistrate did not have the material before her.
The orders make clear that numerous phone calls were made to the husband from the Court both to his land line and mobile telephone number.
In response to the question as to why the husband did not answer his phone on 11 March 2011, the son explained that the father has had trouble with his home phone and that evidence was available from Telstra to support this submission. It is also said the husband had issues with his mobile phone. No evidence in this respect was placed before the Court.
Counsel for the wife submitted that it was in both parties’ interest for the husband’s application for leave to appeal be dismissed, so as to not prolong the proceedings unnecessarily.
It was also said that order 1 of the 11 February 2011 orders provided the son with an opportunity to make an application to act as an intervener in these proceedings and that no action has been taken.
Relevant law
In Clivery & Conway [2007] FamCA 1435 the well known principles referable to such leave applications were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
The affidavit of the husband does not provide any explanation for the delay.
As some of the orders sought to be appealed are interim procedural orders it is necessary for the husband to be given leave to appeal. The general principles applicable to leave to appeal an interlocutory order are well known. It must be demonstrated by the applicant seeking leave that there has been an error of principle, and/or that a substantial injustice to one of the parties will occur if leave is not granted (see Rutherford and Rutherford (1991) FLC 92-255), or that the issue is one of general importance (see Aarons v Knowles (1995) FLC 92-627).
Neither of those prerequisites can be demonstrated in this case.
Conclusion
In the circumstances of this case leave should not be given. The appeal as proposed is without merit. Leave would not be given in relation to the appeal from the procedural orders. The power of the Federal Magistrate to make such orders is not in doubt. It was certainly within her discretion to make such orders in the circumstances of this case. In addition, as counsel for the respondent correctly observed, giving leave to file the appeal will only delay the hearing of the property proceedings. The interests of the wife must also be considered. The dismissal of the husband’s application was correct as the husband has persistently failed to comply with orders of the court.
Costs
An application was made by counsel for the wife for costs. I understand that the applicant is dependent on a pension but he does have property.
An order for costs is justified. The application is without merit. There was no explanation in the affidavit of the applicant for the delay in filing the appeal, there was no explanation about why the appeal may have merit other than the incorrect suggestion that the Federal Magistrate ignored evidence about the husband’s medical condition. The prejudice to the wife was not referred to in any manner in the material or in the oral argument.
An order for costs should be made to be satisfied from the proceeds of the husband’s share of the property settlement.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 9 May 2011.
Associate:
Date: 13 April 2012